The Legal System and Research in the Sultanate of Oman
By Khalil Mechantaf
Khalil Mechantaf is an Attorney at Law in Beirut, Lebanon. He is currently a Legal Associate in private practice with a main focus on international law and agreements. He has previously worked at the International Criminal Court and has published several studies on the judicial systems in the Middle East.
Published July 2010
Table of Contents
The Sultanate of Oman is a central Islamic Monarchy in the Arabic Gulf, having Muscat as its capital. It is composed of four districts, Muscat, Musandam, Sohar and Al Barimi and five areas, the internal, the central, the middle, the eastern and Al Zahira. The Sultanate gained its independence in July 1970 and it was since governed by Sultan (the king) Qaboos.
Prior to 1971 the Shari’a (Islamic) Courts had the jurisdiction to decide on civil and criminal matters, in addition to personal status matters. The Sultan Qaboos Bin Said Al Said ushered in a new era of judicial and administrative reforms in the judicial system in the Sultanate. The legal order of the Sultanate of Oman has been largely codified in a Constitution issued by the Royal Decree n°101/96 on 6 November 1996.
Legislation in the Sultanate of Oman consists of two types: the primary and secondary legislation. Primary legislation is the one promulgated by the Sultan, known as the Royal Decree. The secondary legislation is issued pursuant to Ministerial decisions according to specific powers delegated by the Royal Decrees to the concerned executive or ministerial body. The legal system in Oman is composed of a mixture of the Anglo-Saxon law and the Islamic law. The religion of the State is Islam and the Islamic Shari’a is the basis of legislation (article 2 of the Constitution).
Jurisdiction for deciding on disputes in commercial matters was earlier vested with the authority known as “The Authority for the Settlement of Commercial Disputes (ASCD)”. The Royal Decree n°13/97 brought changes in the title, structure and powers of the ASCD that can now be defined by the Commercial Courts. These Courts comprise of a triple structure with the Supreme Court based in Muscat, six Courts of Appeal at Muscat, Nizwa, Sohar, Ibra, Ibri and Salalah and about 45 Courts of First Instance disseminated on the various districts of the Sultanate.
With the promulgation of the Royal Decree N° 90/99, the Judicial Authority and the formation of the Supreme Court exercising Appellate or Cassatory jurisdiction over all other courts in the country came into effect. An important innovation was the introduction of courts with jurisdiction to try and settle claims up to R.O. 15,000 only. Claims exceeding R.O. 15, 000 are to be tried and settled by primary courts or chambers of First Instance. According to the Royal Decree 13/97 all governmental bodies, departments, authorities and general institutions fall within the realm of the Courts’ jurisdictions.
The system of government is a hereditary Sultanate in which succession passes to a male descendant of Sayyid Turki bin Said bin Sultan. Within three days of the position of Sultan becoming vacant, the Council of the ruling family shall determine upon who will succeed to the throne. If the Council failed to agree upon a successor, the Defense Council shall confirm the appointment of the person designated by the Sultan in his letter to the Family Council.
It is a condition that the male who is chosen to rule should be an adult Muslim of sound mind and a legitimate son of Omani Muslim parents (article 5). The chosen Sultan assumes his powers after taking the oath (article 7).
The powers of the Sultan include the protection of Oman’s sovereignty and the rights of its citizens; the rule of law, representing the State on the national and international levels, presiding the sessions of the Council of Ministers, appointing and recusing the highest Judges, declaration of Peace and War, issuing and ratifying the laws, signing the treaties.
The governance is practiced according to political, economic, social, cultural and security principles laid down in articles 10 to 14 of the constitution, e.g. the property of the State over natural resources, a free market national economy, the prohibition of confiscation of private property, equality of opportunities between Omani citizens.
The Constitution has also provided various civil rights that should be respected during the conduct of the governmental system. Those rights include, among others, the equality between citizens before the Law, their equality in public rights and duties and the prohibition of discrimination between them on the grounds of gender, origin, color, language, religion, sect, domicile or social status (article 17). Other civil rights provided by the Constitution are related to Law enforcement and the Criminal Courts conduct, such as the prohibition of arbitrary detention (article 18 and 24), personal integrity and the prohibition of torture and other inhuman treatments (article 20), the presumption of innocence and the respect of the right of due process (article 22), access to justice (article 25), freedom of religion (article 28), of expression (article 29), of communication (article 30), of the press (article 31), of assembly and associations (article 32 and 33), all in accordance with the Law and in the respect of Public Policy. Extradition is also prohibited for political refugees while it is subject to the provisions of international law and agreements for criminals (article 36).
Article 72 of the Constitution placed the treaties and agreements concluded between the Sultanate of Oman and other States and international bodies and organizations above the Constitution, since it provides that the application of the latter “shall not infringe those agreements”. International treaties and agreements enter into force upon ratification. Transparency in international relations is protected by the Constitution since no treaty or agreement may contain secret conditions that contradict its declared conditions. While the Constitution placed the treaties on the top of the legal hierarchy, however, the Laws and procedures which have the force of Law must conform to the provisions of the Constitution (article 79). In addition, no organ in the State may issue rules, regulations, decisions or instructions which contravene the provisions of laws and decrees in force, or international treaties and agreements which constitute part of the law of the country (article 80).
The Sultan is the Head of State and the Supreme Commander of the Armed Forces. The Sultan is the symbol of national unity as well as its guardian and defender.
Among his functions laid down in article 42 of the constitution, the Sultan maintains the rights and freedoms of its citizens, guarantees the rule of law, takes prompt measures to counter any threat to the safety of the State or its territorial integrity, represents the State both internally and externally in all international relations, presides over the Council of Ministers or appoints a person to serve in that position, appoints and dismisses the deputy Prime Ministers, Ministers and those of their rank, appoints and dismisses senior judges, declares peace or war, issues and ratifies laws.
As mentioned above, the Sultan is in ex officio the President of the Council of Ministers. He is assisted in drafting and implementing the general policy of the State by the Council and other specialized organs.
The Council of Ministers is the body entrusted with implementing general State policies for economic, social and administrative developments. The Council submits in particular its economic, political and social recommendations to the Sultan and proposes the draft laws and decrees. The council supervises the enforcement of the laws, decisions and treaties, fosters the welfare of citizens and ensures the provision of health and other essential services in order to improve their quality of life on all social cultural and economic aspects, oversees the smooth running of the State's administrative apparatus and the performance of its duties, monitors the implementation of all laws, decrees, ordinances and decisions and ensures that they are in compliance with treaties and case Law.
The Sultan shall preside over the Council's sessions and has the right to entrust the chairmanship of sessions that he does not attend, to one of the deputy Prime Ministers. If the Prime Minister and his Deputies are absent, the Sultan will authorize whoever he sees fit to chair the sessions.
The quorum required for a valid holding of the Council’s sessions is the majority of its members. Its deliberations are secret and the decisions are issued with the approval of a majority of those present during the session.
The Council adopts its own rules of Procedure for the holding of its sessions.
As aforementioned, the Sultan presides over the Council of Ministers. However, he may appoint a Prime Minister for that position. In the latter situation, the competence and mission of the Prime Minister will be limited to those specified in the Decree of his appointment (article 48).
Based on article 42 of the Constitution mentioned above, the Sultan appoints as well the Deputy Prime Minister and the Ministers. They will supervise the affairs of their ministries and organizations, and implement the general policy of the Government therein, as well as drawing up future guidelines and follow up on their implementation.
Members of the Council of Ministers are held jointly and several are liable before the Sultan in carrying out the general policies of the State, and each is individually responsible before the Sultan for the discharge of his duties and the exercise of his powers (article 52).
Members of the Council of Ministers are not allowed to combine their Ministerial position with the chairmanship or membership of the Board of any joint stock company. Nor may the Government departments of which they are in charge have dealings with any company or organization in which they have an interest, whether direct or indirect. They should be guided in all their actions by considerations of national interest and public welfare and should not exploit their official positions in any way for their own benefit or for the benefit of those with whom they have special relations.
All Financial matters related, among others, to the collection of taxes, the general State budget and the final account, currency and banking, salaries, pensions, indemnities, subsidies and gratuities charged to the State Treasury and the bodies responsible are determined by the Law (article 57).
According to article 56 of the Constitution, specialized councils shall be established to assist the work of the Council of Ministers and the Ministries in the conduct of their tasks. Their powers are defined and their members are appointed in accordance with Royal Decrees.
The Omani constitution is referred to the Parliamentary life in the Sultanate in only one article (article 58), which divides the Omani Council, pursuant to the Law of 1996, into the Shura Council (Advisory Council) and the Council of State. The Sultan appoints the forty eight members of the Council of State, while the eighty two members of the Advisory Council are elected for a period of three years. The Constitution has left for the Law to specify the powers of each of these Councils. Although they operate as consultative organs, however some have the power to propose draft laws. All Laws are published in the Official Gazette within two weeks of the day of their issuance. Laws come into force from their date of publication unless they provide for another date (article 74). The Constitution provides for the non-retroactivity of the Laws issued, since they are applied from the date of their coming into force; whatever happens before that date is of no consequence, unless the text specifies otherwise. However, it provides as well for some exceptions on the non-retroactivity principle in the case of criminal Laws and Laws concerning taxes and financial dues (article 75).
According to the Constitution, the Law also specifies the frequency of the Councils’ sessions, their rules of procedure, the number of the members of each Council, the conditions which they must fulfill, the method of their selection or appointment, the reasons for their dismissal, and other regulatory provisions.
Since Political parties are banned in Oman, all the candidates elected are independent and non-partisan. The right to vote is fixed at the age of 21 for both men and women.
The judicial issues are held by the Ministry of judicial affairs that was created in 1994. The Sultan issues all the judicial appointments. Articles 59, 60 and 61 of the Constitution provides for the rule of Law, the impartiality of the Judge, the independence of the judiciary and the prohibition of any interference in a Law suit or in the matters of justice. According to the Constitution, Court hearings are public except when the Law Court decides to hold the case in camera in the interests of public order or public morals. However, the pronouncement of findings and sentence is made in open session (article 63).
The judiciary is composed of a Higher Council that oversees the smooth running of the Law Courts and auxiliary bodies. The powers of the Council with regard to the functions of the judges and the public prosecutor are defined by the Law (article 66). Civil, Criminal and Commercial cases are all reviewed by the Courts of First Instance. The decisions of the Courts of First Instance can be appealed before one of the six Courts of Appeal in Muscat. The latter Courts are composed of three Judges. The Supreme Court is the final appellate Court that is also in charge of uniting the legal principles.
On the other hand, the Shari’a Courts review cases related to the personal status and family law, while special administrative Court or department is in charge of adjudicating administrative disputes; the organization of which and mode of procedure is specified by the Law (article 67). Furthermore, the Constitution included special provisions regarding the jurisdiction of Military Courts and the enactment of Martial Laws, providing that such jurisdiction of Military Courts shall be restricted to military crimes committed by members of the Armed and Security Forces and shall only extend to others in the case of a martial law within the limits laid down by that Law (article 62). It is worth noting here that the enactment of a Martial Law leads to suspending the provisions of the Constitution and all the rights and principles laid down therein (article 73).
The public prosecutor undertakes the legal proceedings on behalf of the community, and oversees matters of judicial prosecution, while he remains vigilant in the application of the criminal code, the pursuit of the guilty and the execution of court judgments. The Constitution refers to the Law in regulating the public prosecution and its competencies and the conditions applicable to those who discharge its functions. The Constitution provides an exception on the jurisdiction of the Public Prosecution in cases involving misdemeanors where the Public Security departments may be legally empowered to conduct proceedings in those cases in accordance with the conditions laid down by the Law (article 64).
All Judgments rendered to the Constitution are delegated to the Law of the mission of adjudicating cases of disputes over the jurisdiction between judicial departments and in cases of conflict of judgments (article 68). While not explicitly providing for the establishment of a Constitutional Council/Court, the Constitution refers to the Law for determining the judicial department concerned with settling disputes arising from the incompatibility of laws and regulations with the basic Laws of the Sultanate and ensuring that those provisions are not contravened (article 70).
All Judgments rendered by judicial entities are rendered and executed in the name of «His Majesty the Sultan». Failure or delay in executing these judgments is considered a crime punishable by law. In such a case the winning party is entitled to file a criminal action to the court concerned (article 71).
Legislations related to the Courts and the Judiciary:
· Code of the judicial authority n°90/1999;
· Code of administrative courts n°91/1999;
· Code of criminal procedures n°97/1999 with its amendment n°91/1999;
· Code of civil and commercial procedures 29/2002 with its amendment n°92/2005;
Legislations related to the political life:
· Code of civil associations n°14/2000;
Legislations related to Commercial and Economic affairs:
· Code of arbitration in civil and commercial disputes n°47/1997;
· Code of commercial agencies n°26/1977;
· Code of money laundering n°34/2002;
· Code on the protection of consumers n°81/2002;
· Banking Code n°114/2000;
· Privatization Code n°77/2004;
· Finance Code n°47/1998;
· Foreign investment Code n°102/1994;
· Code of intellectual property n°82/2000;
· Oil and Gas Code n°42/1974;
· Insurance Code n°12/1997;
· Code of maritime fishing n°53/1981;
· Code of tourism n°33/2002;
Legislations on nationality and passports:
· Passports Code n°69/1997;
· Code of Foreigners n°16/1995;
Legislations related to Criminal Affairs
· General Prosecution Code n°92/1999;
Legislations on property and real estate:
· Code of expropriation for the general interest n° 64/1978;
· Code of real estate n°5/1980;
Legislations on civil matters:
· Notary Code n°40/2003;
· Social insurance Code n°72/1991;
· Conciliation Code n°98/2005;
· Labor Code n°35/2003;
· Code of personal status n°32/1997;
· Traffic Code n°28/1993;
· Media Law n°95/2004;
· Communications Code n°30/2002;
· Law of civil Status (related to the civil registry for birth, death, marriage, divorce, foreigners and nationalities) n°66/1999;
Legislations on the Environment:
· Environment Law n°114/2001;